Communicated on 4 May 2016
FIFTH SECTION
Application no. 71082/12
Galyna Sydorivna SVINTSITSKA
against Ukraine and 4 other applications
(see list appended)
STATEMENT OF FACTS
A. The circumstances of the cases
The applicants are Ukrainian nationals whose names and personal details are set out in the Appendix. They are owners of agricultural land. The available information about the time and grounds of acquisition and the size of the relevant plots of land is also set out in the Appendix.
The land owned by the applicants is subject to legislative restrictions on its alienation and the change of the designated use as set out under “The relevant domestic law” below.
B. The relevant domestic law
1. Background of the legal situation in land ownership in Ukraine
Prior to the adoption of the Land Code of 18 December 1990, individuals and non-State entities could not own lands in Ukraine. Under Article 17 of the Code local councils were authorised to transfer lands to the ownership of individuals and non-State entities. However, for the period of six years, those who acquired the lands could not sell them or otherwise alienate (except for inheritance). They could only transfer the property back to the local councils. National courts could shorten this period of time provided that there was a good reason (поважна причина) for such a decision.
A large number of agricultural lands were held by collective farms (колгоспи) which, by the operation of law of 14 February 1992, were renamed into “collective agricultural enterprises” (hereinafter “CAEs”).
A Presidential Decree of 8 August 1995 provided for a program of gradual reform of the CAEs through the issuance to their current and former members of “land shares”, i.e. land entitlements in form of shares of the whole land of the CAE in hectares but without specific physical location and definition of boundaries.
A Presidential Decree of 9 December 1999 aimed to accelerate the reform by requiring dissolution of CAEs by April 2000 through distribution of the CAEs’ land shares and other assets to their members. As a result, a large number of rural residents acquired the land shares.
On 1 January 2002 the new Land Code of 25 October 2001 entered into force. Its Article 22 § 3 indicated the major categories of designated use for agricultural lands: i. personal homestead, ii. fruit and vegetable gardening, iii. pasture and hay harvesting, iv. commercial agricultural production, and v. use by a farmer’s enterprise (commercial entities owned by a farmer or his family who works in it, engaged in commercial agricultural production).
2. Original moratorium
Article 15 of the Transitional Provisions of the new Land Code provided that until 1 January 2005 individuals and non-State entities could not sell or otherwise transfer the title to two categories of lands in their ownership: i. land plots designated for farmer’s enterprises or other commercial agricultural production and ii. land shares. Swap transactions, inheritance and seizure for public needs were exempt from the transfer ban (“the moratorium” – мораторій).
3. Extensions of the original moratorium
Article 15 of the new Land Code was subsequently updated on a number of occasions as to both the length and scope of the original transfer ban.
On 6 October 2004 the moratorium was prolonged until 1 June 2007 and the exception of swap transfers was abolished.
On 9 February 2006 all contracts envisaging future (supposedly after expiration of the moratorium) transfers of lands were declared null and void.
On 19 December 2006 the moratorium was prolonged until 1 January 2008 and newly applied also to all land plots acquired by their owners in form of conversion of land share, and to all public agricultural land. Moreover, any change of designated use of the particular land subject to the moratorium was forbidden. On the other hand, swap transfers involving a swap of one land plot to another was again allowed.
On 28 December 2007 the Act on State Budget for year 2008 cancelled the date of 1 January 2008 as the end of the moratorium and provided that the moratorium would remain valid until the State Land Cadastre and Land Market Act would enter into force. On 22 May 2008 the Constitutional Court declared the relevant provisions as unconstitutional on the ground that a law providing for the State budget could not amend the existing legislative norms which are not relevant for the budgetary concerns.
On 3 June 2008 the date of 1 January 2008 was again removed as the date of the end of the moratorium was linked to the adoption and entry into force of the State Land Cadastre and Land Market Act, which were supposed to govern the particularities of circulation of public lands and lands designated for commercial agricultural production.
On 19 June 2010 the legislator decided that the moratorium would remain in force at least until 1 January 2012 even if the above laws were enacted and entered into force.
On 7 July 2011 the State Land Cadastre Act was enacted and entered into force on 1 July 2013.
On 9 December 2011 the legislator removed the State Land Cadastre Act from the conditions for the end of the moratorium and stated instead that the moratorium in respect of privately-owned lands would expire with the entry into force of the Land Market Act and in accordance with the procedure set forth in that Act, but not before 1 January 2013 in case that that Act entered into force earlier. As to the moratorium on the public lands, it was decided that it would come to its end on 1 January 2013 without any reference to the Land Market Act.
On 2 October 2013 the change of designated use category of lands under the moratorium was allowed provided that those lands were allocated to an investor on a production-sharing agreement.
On 20 November 2013 the legislator enacted a new condition for the expiry of the moratorium concerning both privately- and publicly-owned lands. It held that the moratorium would come to the end on the moment of the entry into force of a law governing the circulation of agricultural lands, but not earlier than 1 January 2016.
Finally, on 10 November 2015 the minimum duration of the moratorium was extended until 1 January 2017. The condition tying the end of the moratorium to the entry into force of the law on circulation of agricultural lands remained in effect.
COMPLAINTS
The applicants complain that the legislative restriction on the alienation of their land and change of its designated use is disproportionate, negatively affecting the economic value of the land, and violating Article 1 of Protocol No. 1.
QUESTIONS TO THE PARTIES
1. Has there been an interference with the applicants’ peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1?
2. If so, was it carried out in accordance with the conditions provided for by law?
3. If so, was that interference necessary to control the use of property in accordance with the general interest? What was and is the justification of the legislator’s decision to extend the legislative restrictions on alienation of lands since the moment when the applicants acquired their plots of land and until 1 January 2017?
4. If so, did that interference impose an excessive individual burden on the applicants (see Immobiliare Saffi v. Italy, [GC], no. 22774/93, § 59, ECHR 1999-V?
5. The Government are requested to submit information regarding the legislative history of the laws extending restrictions on the alienation and change of designated use of the applicants’ land, including any provisions in the explanatory notes (пояснювальні записки) to the relevant draft laws which could explain the reasons for the extension and modification of such restrictions.
APPENDIX
No.
Application
no.
Lodged on
Applicant name
date of birth
place of residence
Facts
71082/12
29/10/2012
Galyna Sydorivna SVINTSITSKA
06/08/1933
Kyiv
The applicant obtained two plots of land of the total size of 2.23 hectares as a result of dissolution of a collective agricultural enterprise in July 2005.
62002/15
07/12/2015
Nataliya Stepanivna SLIZHOVA
28/04/1942
Boryspil
The applicant obtained 3.87 hectares of land through conversion from a land share in July 2001.
404/16
14/12/2015
Yelyzaveta Mykhaylivna VOLOSHYNA
20/03/1937
Kirovograd
The applicant obtained title in 5.63 hectares of land in April 1999.
846/16
22/12/2015
Sofiya Stepanivna ZELENCHUK
15/07/1947
Ivano-Frankivsk
The applicant inherited 2.59 hectares of land from her mother in May 2000.
1075/16
23/12/2015
Viktor Antonovych TSYTSYURA
09/03/1939
Ternopil
The applicant inherited 3.41 hectares from his mother in November 2004.
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